*1 opinion on panel overrules the for violation revocation on in- was based upon exiting “that the United original the condition submission States, Mexi- Republic of vi- probationary remain within the sufficient evidence co,” re-enter the discussing and the condition “do not the evi- olations without States, legally illegally, United only disposition in the dence. I concur the court.” written prior rehearing. the motion for 5, 1979, vacated an the court On October
earlier order of revocation released J., DAVIS, opinion. joins this W. C. condi- probationary on the same 8,1979, filed November tions. On alleging,
a second motion to revoke 18, 1979 of the on a violation October
two conditions described above. violations, the State proof
For of such Gonzales, a
offered the of Jose L. he officer. testified
probation Gonzales Brown, probation
was with Vincent another officer, ROBERT, Appellant, when saw the they El 300 block of El city of Paso South 18,1979. Believing Paso on October Street was to in violation of his be conditions, he was arrested.
probationary any per- Gonzales was not shown to have 1979, 5, sonal that since October placed probation, when on Panel No. 2. appellant had to Mexico and then returned 11, re-entered the United States. deporta- Lally, supervisory Robert E. 8, 1981. April Rehearing Denied Service, Immigration
tion officer for the re- agency testified the records of such Hernandez Ochoa”
flected that an “Adolfo return to Mexico voluntary 12, 1979, returned October and was
Mexico. He testified from the records. knowl- any personal
was not shown to have re-
edge actual
turn to Mexico. showing
There is no “Adolfo Lally mentioned
Hernandez Ochoa” name appellant whose Adolph the record Ochoa through
Hernandez. The exhibit offered Lally
the witness is not in the record
us nor of the other exhibits. evidence to show being
There ever United 5, and October
States between October disposed on properly need to
original submission. There is no validity of the
reach a discussion of the
probationary conditions. It is observed
appellant proba- violated conditions of would tion that she commit offense she against the laws this State committed the offense of theft. asserts that the trial revoking probation abused its discretion in because the evidence State, law she violated of this a state- suppress because court did not which it alleged was arrest. unlawful that the cir urges evidence admitted to cumstantial of theft is that she committed the offense she insufficient without Although appears made after her arrest. lawfully was obtained and the statement evidence, the evidence without admitted in In a revocation the statement is sufficient. judge trial probation proceeding the facts, State, v. 571 Battle the finder of 1978); 20 (Tex.Cr.App. Davila S.W.2d 1977) State, 606 (Tex.Cr.App. 547 S.W.2d did not consider presumed and it is that he 542 evidence. Maden inadmissible 1978); Howery v. (Tex.Cr.App. S.W.2d (Tex.Cr.App. Reed Therefore, if the statement but the evidence without
were inadmissible
the statement is sufficient the
may be sustained.
court’s order
Buckner,
appellant.
Bill
Georgetown,
at a
employed
Jr.,
Henderson,
Atty.,
John
B.
County.
A cus-
Falls
shop Rosebud
Huttash,
Cameron,.
Atty.,
State’s
late afternoon
tomer testified that in the
Austin, for the State.
dollar
twenty
two
gave
she
account.
bills
DALLY, W. DAVIS and CLIN-
Before
C.
receipt
receipt;
a
gave the customer
TON, JJ.
clos-
in evidence. Just before
was admitted
of Police came to
ing time the Chief
appellant that
and told the
OPINION
been issued
for her arrest had
DALLY, Judge.
paid a fine
and unless she
County,
revoking
is an
from an order
$86.50,
her into cus-
he would have to take
probation.
convicted
officer she
told
tody.
instrument;
passing forged
offense of
permitted
payment. He
not make the
for three
punishment
imprisonment
in his
shop, waiting
to close the
years.
After she closed
car outside.
ask-
officer’s car
appellant approached
now
has
Probation
she needed.
much
him how
been
has found
revoked. The court
her;
fact,
money,
told
she said
had the
determined
the finder of
in this
paid
judge.
the officer. The
the trial
appel-
instance
gave
lant
two twenty
included
The dissent raises a matter the
dollar
bills. Later
ap-
finds the
Why?
did not.
The dissent
received
telephone
appel-
call from
money;
pellant “borrowed” the
lant’s
employer.
Thereafter
*3
Who was the
judge found that she stole it.
signed
complaint accusing
the
wasn’t;
complainant
he testi-
lender? The
warrant,
of theft. The officer
give
to take
fied he did not
her
went
to
appellant’s apartment,
the
and
disprove
the
this
the excul-
money. Doesn’t
placed her under arrest.
To re-
portions
the confession?
patory
the
peat,
appellant’s
the evidence without
The
testified that
appellant’s employer
revo-
support
is sufficient to
the
confession
the
closed the flower
and
judge, not
this
cation order. The trial
in
envelope
an
the money received that
Court,
the finder of facts in a revocation
is
day.
envelope
any
The
not contain
did
record
us the
proceeding. On the
before
bills; it
twenty dollar
contained one dollar
in
did
its discretion
not abuse
bills and
checks. The
did not
revoking probation.
have her employer’s permission
to take
evidence,
money. The circumstantial
with-
is
judgment
affirmed.
statement,
appellant’s
out
the
is
CLINTON, Judge, dissenting.
amply
sufficient to
the theft by a
preponderance of the
evidence and
suffi-
it,
presents
As I
a classic
see
cause
to
the
trial court’s order.
settled rule that
applying
the
situation
state
by
exculpatory
the State is bound
an
argues
that the
also
his
confession
accused
appellant did not
commit the offense
unless the
is introduced
State
theft,
because she took the
under
other evidence to be
duress or
entrapped.
See,
g.,
e.
untrue.
Walker
general
uses these
in a
terms
(1940),
and
Tex.Cr.R.
sense; she does not
the evidence
analyze
Starvaggi
the discussion of
rule
organize
argument
using
her
V.T.C.A.
(Tex.Cr.App.
she was on the to her MARSH, Appellant, D. to arrest her. so when the officers came circumstantial evidence adduced does not demonstrate that her false, stated intent and as it- stands her intent was such “as would clear tend guilt,”2 clear from fault or the accused En Banc. State, supra, Palafox v. 181. at Indeed, an ex- arresting tremely stressful situation cannot be denied. simply
presence, hearing, not but *4 Green,3
alleged shop, owner of the Marshall with a real presented choice: he told her his instructions
Hobson’s
were have her or the “to either deputy there” from Mi- got
whenever
lam This is context County.4 curren- “borrowed” the indictment, and within
cy, alleged
minutes Wieser literally stated Chief
what her intentions were.
I respectfully dissent. confession, County Deputy ad- apparently Charles West of Milam 1. The the hand appellant, given just after her arrest on the the State: duced (All alleged same offense. I had a him [ChiefWieser] “A: I advised indicated.) phasis is mine unless otherwise 11,731 number Court Danfield, I had whom manager flower absence Vickie Danfield that Vickie and, shop, up appellant was left to close follow- him to and I asked serve one in the same instance, appel- procedure the usual in such for me.” [sic] warrent “put money envelope and lant was to in an you Q: tion, men- number This warrent [sic] them in the checks or whatever it out of issued is that warrent [sic] filing handled cabinet” be later County? manager. Yes, sir, it is. A: 3. The of the fact that for, takes no note you Q: know? if What “subsidiary” shop Green’s property by A: Q: check. Theft Inc., Home, corpora- Funeral a State-chartered you have that warrent [sic]? Do tion, seventy five testified. He holds Green Yes, 1 do. A: sir. wife, shares, actually percent manages who of its but his war- Q: of that the date of issuance What is was considered rent [sic]? employer-supervisor. day of is the 8th A: date of issuance significance Mrs. Green was further is that February, 1980.” away the flower from Further, due amount doubt there events. $86.50. I Wieser Chief collected perti- perceive what additional am at a loss by appellant 4. The “duress” contention made supplied have been nent information view, because, by majority dismissed testimony more paper the precise. itself to make very rec- the ord the officers...” “has little basis testimony except some of the Here, part, is the